Tennessee

July 03, 2018

In 2004, we published our “Top 10 Zany Immunity Law Awards,” poking fun at special interests that annually line up before state lawmakers asking “for the opportunity to show their patriotic civic duty” by getting immunity for themselves. “After all,” we satirized, “just in case they do something wrong, why should they have to pay for it anyway?” We had the “Let’s Put the FUN Back in FUNerals” Award, for the law immunizing morticians in Indiana who mix-up body parts; the “Make Mine Extra Crispy” Award, for legislation immunizing tanning parlors in Colorado; and the “One Strike, You’re Out … Cold” Award, which shields baseball park owners from liability in Arizona.

Today, all joking aside, we are seeing a new incarnation of this strategy, but there’s nothing very funny about it. It comes courtesy of an often unpopular yet incredibly brazen group of special interests – used car dealers. If restoring their reputation or fostering good will is any sort of goal for this group, their latest endeavor isn’t going to help.

Nine out of 10 Americans believe that car dealers shouldn’t sell used cars with safety defects. Despite this fact, dealers have successfully pushed in Tennessee and Pennsylvania — and are now trying to pass in New Jersey — legislation to allow used car dealers to sell used cars with unrepaired safety defects. (They have been unsuccessful — for now — with similar bills in California, Maryland, Massachusetts, New York, and Virginia.) What’s more, the dealers would not be liable for resulting injuries or deaths caused by the safety defect. All the car dealer has to do is “disclose” (i.e. bury in paperwork) when selling the car that it’s under safety recall. But obviously, the whole idea is to allow these dealers to pressure and confuse customers into buying unrepaired cars, and then not be on the hook for selling them.

This legislation will hurt decent, hardworking Americans in extremely disturbing ways. Just ask Alexander Brangman, whose beautiful 26-year-old daughter, Jewel, was killed by an unrepaired, recalled Takata airbag. You may have heard about Jewel. She was the girlfriend of actor Scott Eastwood, Clint’s son, and a “a gifted gymnast, gymnastics teacher and model” who was preparing for her Ph.D. Her father, Alexander, is now on a mission to ensure that such a tragedy doesn’t happen to anyone else. As he wrote to the Governor of New Jersey about the bill under consideration:

November 08, 2012

If you’re one of the 18 to 29-year-olds who made up 19 percent of voters this year (a higher percentage youth vote than in 2008! Yay!), you are mostly likely unfamiliar with an annoying 1970s Chiffon Margarine TV commercial that goes “It’s Not Nice to Fool Mother Nature!” But whether you’re 18 or 85, that universal “don’t fool with me” sentiment seems to have marked a number of election contests this year, even besides the obvious (i.e., women, gays and pot!)

Let’s start with the California’s insurance industry. Don’t mess with the 1988 insurance reform initiative, Proposition 103, and the consumer group behind it, Consumer Watchdog. Billionaire Mercury Insurance Chairman George Joseph just wasted $17 million on his Proposition 33, which would have repealed Prop. 103’s provision preventing insurance companies from charging more to drivers who had a lapse in insurance coverage. This is about what Joseph spent almost exactly two years ago on basically the same ballot measure. Yet despite being outspent by Joseph 70 to 1 (the Consumer Watchdog coalition had only about $275,000), Prop 33 went down!
Next up for Consumer Watchdog: the health insurance industry!

Speaking of the insurance industry, seems like they’re a little nervous that their influence-peddling in Congress may be in need of some new targets. Reports the National Underwriter’s website,

Rep. Judy Biggert, R-Ill., was defeated for re-election, a
victim of redistricting. She headed the Subcommittee on Insurance, Housing and
Community Opportunity of the House Financial Services Committee, and was
expected to be a big player on insurance issues. She shepherded the [National
Flood Insurance Program] bill through its tortuous, five-year path to a
long-term extension. The bill was finally enacted in July. It is unclear who
will succeed her as chair of the insurance subcommittee. Biggert was also
expected to be a key player on regulatory issues as well as in gaining passage
of A Terrorism Risk Insurance Act extension. Joel Wood, senior vice president of congressional affairs of
the Council of Insurance Agents and Brokers, called Biggert's defeat,
“extremely disappointing to the insurance industry.”

I can see why they’re anxious. Between escaping payment for climate-related floods and getting bailed out for
terrorist attack losses, this industry clearly needs some
friends.

And speaking of elections, here are a few other interesting
outcomes:

The U.S. Chamber of Commerce finally got their wish in West
Virginia, ousting consumer-friendly AG Darrell McGraw who had held office for
20 years, “perhaps marking the start of major changes to West Virginia consumer
protection litigation… [McGraw] has won the state more than $2 billion in
consumer protection lawsuit settlements against pharmaceutical, coal and
tobacco companies and unscrupulous lenders, according to his office.”

They also got supermajorities in states like Indiana,
Wyoming and Tennessee (both Houses), North Carolina (one House plus Governor)
and won back majorities in states like Wisconsin. (See more here and here.) But the good news is that state houses flipped the other way
in Colorado, New York, Maine, Minnesota, and Oregon (where there had been a
tie), with apparent supermajorities in California
and Illinois! And that awful New
Hampshire Speaker who pushed through that horrendous anti-patient medical malpractice bill (which
we covered here) is no longer speaker since the Democrats took over! Let’s hope a repeal is on the way!

Iowa
retained Justice David Wiggins, the Supreme Court Justice who had ruled on same-sex marriage with
a 54% retention rate. (This
is in counter to two years ago when 3 of Wiggins’ colleagues were thrown
out by voters.)

In North
Carolina, incumbent Supreme
Court Justice Paul Newby won over appellate Judge Sam “Jimmy”
Ervin IV thanks to an unprecedented and disturbing amount of outside money from business
interests and conservative groups.

In Mississippi, attorney Josiah Dennis Coleman won
over pro-consumer attorney Richard Phillips due to nasty outside money:
"The out-of-state special interest group Law Enforcement Alliance of
America ran advertising in north Mississippi blasting Phillips as a trial
lawyer who had filed a lot of lawsuits against business. …Phillips said
the Virginia-based LEAA was trying to buy a seat on the court. He said
such groups can put out negative ads that distort the truth without
disclosing who are the individuals paying for the ads."

January 03, 2012

With Iowa’s place in the election-cycle sun about to set, the intense media spotlight on the state will soon take another 4-year break. Which is not to say that there aren't wonderful things to visit in Iowa, like the Field of Dreams baseball diamond and the Herbert Hoover National HistoricSite. But I think we can all agree that these attractions are not nearly as entertaining as candidates falling all over themselves trying to prove to conservative caucus-goers who’s the real “constitutional conservative.” I find this somewhat ironic in a state that instead of respecting independence of its judiciary, decided to oust three Supreme Court justices because they dared to uphold the constitutionality of same-sex marriage. Nothing like moving forwards/backward into the 20th century.

But that’s kinda how it is with constitutional conservatives – sometime they like their constitutions. And sometimes they don’t.

Take Arizona, for example. There, writes the Arizona Daily Sun, “two state legislators want changes to sections of the Arizona Constitution that govern how much businesses and individuals have to pay -- and to whom -- when a jury finds they're liable for killing or injuring someone.” Arizona, interestingly, has one of the strongest constitutions in the country protecting its injured citizens from politicians who want to strip them of their constitutional rights. It should be noted that similar efforts were rejected by voters twice before, in 1986 and 1994.

This issue is also rising to the surface in Tennessee, where the “Tennessee General Assembly pass[ed] two laws explicitly aimed at overturning state Supreme Court decisions that lawmakers didn’t like” and they’re not alone. WritesThe Tennessean,

In statehouses, 2011 saw more efforts to remove judges than any other year in recent history, according to Bill Raftery of the National Center for State Courts. Fourteen bills in seven states sought the impeachment of judges, including one that would have abolished the entire Superior Court of New Hampshire. In all but two instances, impeachment was sought simply because lawmakers didn’t like judges’ decisions, according to Raftery.

In Tennessee, there is a serious question whether last year’s law capping damages that jurors can award is constitutional. The same is true for two other bills that, writes the paper,

Go so far as to tell the courts how to interpret their own procedural rules for resolving disputes. In the words of Mark Chalos, a Nashville attorney at the plaintiffs’ firm Lieff Cabraser Heimann & Bernstein, lawmakers went beyond changing the substance of a law, which he said would be OK, and changed the rule lawyers and judges play by, which he said crosses the line.

“The Tennessee Constitution and Tennessee law is clear that it is exclusively in the courts’ purview to make rules for resolving disputes,” Chalos said. “There is a concern that this legislature is ignoring the constitutional limits on its powers.”

September 26, 2011

Our legal system protects us all from injury and disease, whether or not we ever go to court. This is because the prospect of “tort” liability deters manufacturers, polluters, hospitals and other potential wrongdoers from repeating their negligent behavior and provides them with an economic incentive to make their practices safer. This phenomenon is not a fabrication invented by attorneys. It has been recognized and documented by everyone from conservative economists like Richard Posner, to Rand’s Institute for Civil Justice, to William L. Prosser, the father of modern tort law. (Just ask any first year law student.)

Imagine the amount of money the civil justice system actually saves the economy in terms of injuries and deaths that are prevented due to safer products and practices, wages not lost, health care expenses not incurred, and so on. Weakening the tort system with laws like "caps" on damages lessens this deterrence function, makes corporations more unsafe and costs us all more money. Pretty basic.

To say this message is often lost in the current political discourse about the tort system is a bit of an understatement. More like its been ground down, chewed up and spit out into something not quite recognizable anymore.

To wit, in Tennessee, a new law goes into effect this week that will "cap" damages and severely limit the legal accountability of nursing homes for abuse and neglect, which comes,

[J]ust a couple of years after the legislature in 2009 vastly reduced oversight of the 325 nursing homes in the state by eliminating regulations mandating that nursing home operators file detailed reports on adverse events affecting patients. Also eliminated were requirements that the state investigate those incidents. Officials said the change was needed so they could spend their time investigating more serious complaints.

A report issued this year by the U.S. Government Accountability Office gave the state Health Department failing scores for its performance in investigating serious complaints against nursing homes. It said there was a backlog of cases that had gone uninvestigated, and it cited a staff shortage as a factor.

Really, the last thing Tennessee should have done is block the critical last line of defense against unsafe nursing homes – the tort system. Yet that’s just what they did. The paper reports,

The new limits on lawsuits could shut down yet another avenue of complaints — the courtroom. Plaintiffs’ lawyers candidly admit that the new caps will keep many nursing home malpractice claims from ever getting to court, in part because lawyers will be less inclined to take the cases. … Tennessee nursing homes already rank near the bottom nationally in two key areas of care, according to federal data. Without the threat of lawsuits, some attorneys and advocates think, it will sink even lower.

Meanwhile, in another area of the country, Michael A. Cardozo, New York City’s corporation counsel, is calling for, among other things, “caps” on compensation for people killed or injured due to negligence in city hospitals and for other city misconduct - in order to save the city money.

As we’ve noted, the largest portions of total payouts against the city have always been for police misconduct and horrendous preventable injuries – brain damage, blindness, etc – due to negligence in city hospitals. Patient safety efforts in city hospitals remain abysmal and they promise to only get worse now that all hospitals in the state will no longer be accountable for causing brain damage in newborns. Why on earth would the city want to reduce payouts by cutting off people’s legal rights, further weakening the deterrence function of the tort system leading to even more unsafe hospitals, and to accompanying increases in cost and physician utilization inherent in caring for newly maimed patients?

… Mr. Cardozo also pointed to the city’s own use of lawsuits to generate revenue, as well as defenses that have helped the city to protect its finances.

The city, for example, won a $104 million verdict against Exxon Mobil for allowing a gasoline additive to infect groundwater in Queens, Mr. Cardozo said. It also won $9.5 million from Amtrak for failing to reimburse the city for the cost of fixing two bridges, he said, and $8 million from the state for improperly charging the city for Medicaid expenditures.

The deterrence function of the tort system isn’t the only thing lost on Mr. Cardozo. His own hypocrisy seems lost as well.

April 27, 2011

What happens when conservatives and “non-conservatives” (like Tennessee Citizen Action and the Tennessee Association for Justice) unite in opposition to laws that limit the accountability of wrongdoers? One would think this would be the death knell of such proposals, yet it may not be enough to stop the power of Big Business from wielding its influence in Tennessee. That’s where a packet of Draconian “tort reform” proposals are making it through the legislature despite some incredibly unified opposition from members on both sides of the political spectrum.

For example, Tennessee State Sen. Mike Faulk recently wrote this column:

Two of the cornerstones of conservatism are the principles of personal responsibility and limited government. A proposal to reform our tort system by establishing government-imposed limits on general damages in civil lawsuits runs counter to each principle.…

The law of tort is that if someone hurts someone else, they should make up for it. This is the very core of the principle of personal responsibility. It's why we have a tort system. The purpose of tort law is to require full payback for harm done. …

Government telling a jury it may not award a full measure of justice violates the second principle of conservatism. Government-imposed limits on general damages is the antithesis of limited government. Government intervention in civil matters shifts the risk of loss from the wrongdoer to the injured at the point where caps apply. Such risk shifting is plainly government meddling in private matters.

Then there’s former U.S. Senator Fred Thompson (R-TN), who has a long history of opposing liability limits even when he was in the U.S. Senate. He wrote back in January:

Some argue that the Legislature should tell Tennessee juries that they can award only so much compensation in certain types of cases against certain types of defendants - regardless of the facts and circumstances of the case. I don't agree with this approach, and I don't think it's "conservative."

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society.

Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It's about government closest to the people and equal justice with no special rules for anybody. It's also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the U.S. Constitution.

February 16, 2010

Bob Herbert has a New York Times column today about the sorry state of this country’s infrastructure, a problem that
hopefully the President is more willing to tackle
especially because of the jobs it could generate.Herbert tells an interesting story about the pipes under
Philadelphia, when (according to then Mayor Ed Rendell), “58 of our water mains
broke, causing all sorts of havoc … The pipes were old. Some were ancient ... and
they were laid shallow, without much protection.So with any radical changes in temperature, they were
susceptible to breaking.We had a
real emergency on our hands.”

In fact, some of those pipes were laid back in the 19th
century - robber barons days. So it's kind of incredible that they lasted so long. I guess even the greedy industrialists back in the day didn’t have the gall to do what apparently the company JM Eagle has been doing to cites and water districts since
1996.According to the company’s

former employee,
John Hendrix, the company has been:

falsifying test results about the quality of its products. Pipes
that should last 50 years are in some cases rupturing in their very first year,
according to Mr. Hendrix and some state documents. This can lead to explosions,
leaks, fires and other dangers.

[Hendrix said] JM Eagle had been selling substandard plastic pipe since 1996, and
that it had subsequently manipulated test results.

“It became apparent to me that this was being done intentionally,”
he said in an interview [with the New York Times].

Nevada, Virginia, Delaware, Tennessee and more than 40 water
authorities in California have brought suit, saying this could cost each of
them many millions of dollars to fix.And that’s just the beginning. The company claims “about 60 percent of
the nation’s market for new water pipes.”

And for all of you asbestos trivia
fans out there, turns out that JM Eagle is a successor to Johns Manville, which
went bankrupt in the early 1980s after poisoning countless people with asbestos
for decades knowing the medical dangers, covering this up for 45 years.

July 16, 2009

Much of what has been driving the whole “healthcare reform” debate that we’ve been talking about lately (here, here, here) has been unfounded concerns that doctors are ordering too many tests due to liability concerns. Never mind that the GAO, CBO and others have repeatedly debunked this so-called “defensive medicine” myth, with one study noting that less than 8 percent of all diagnostic procedures are likely to be caused primarily by liability concerns.

Sometimes the best way to talk about the issue by showing a real example.

In 2003, Hill called her gynecologist's office to complain of a lump with possible dimpling, according to a statement prepared by [Hill's attorney]. The statement goes on to say that a receptionist made note of the complaint and was advised by Moise to tell Hill not to worry about it until she came back for her next check-up. At her appointment two weeks later, Hill reminded Moise of the lump. Moise did not order a mammogram and told her it was most likely a cyst or fatty deposit. Hill became pregnant and noticed that after having the baby, the lump seemed worse. She scheduled an appointment at the office and was treated by Moise's partner, Dr. Paula Pilgrim. Subsequent mammogram and ultrasound results confirmed that Hill had breast cancer, and it had already spread to her liver.

Hill sued her gynecologist (despite being too weak to testify in person) and a jury found Dr. Moise liable. So next time you hear bogus arguments that there is "too much" diagnostic testing being done on patients, think about Courtney Hill.

May 28, 2009

Last week, we told you about the many consumers severly injured by design and manufacturing defects in Chrysler vehicles, who could go uncompensated as a result of Chrysler’s proposed bankruptcy. Well increasingly, the news has been filled with stories that put faces with those numbers, and the results have been gut wrenching.

Consider the case of 8-month-old Joshua Flax who was killed as a result of a defective seat design in his family’s Dodge Caravan. On Tuesday, the U.S. Supreme Court importantly let stand a decision ordering the company to pay for this child’s death, including $13 million in “punitive” damages for its perilously-designed and lethal seat. (Thanks to the Center for Constitutional Litigation for their help on this case.) Yet if Chrysler’s proposed bankruptcy agreement is approved without changes to help these victims, this family would receive nothing for their baby’s death.

Then there’s the story of Joseph and Jeanne Polio, a retired couple from East Haven, CT. In July of 2005, their Jeep was involved in a crash (not their fault) which landed on its roof and crushed down on Jeanne, and her leaving herparalyzed from the chest down. Their attorney says that Jeanne’s injury was due to roof crush standards that “have been unchanged for 30 years and are ‘grossly inadequate.”’ The couple now lives off of Joseph’s modest city police officer pension, and has already incurred $175,000 in costs to modify their home to accommodate Jeanne’s wheelchair.

Finally, there’s the case of Robert Dinnigan, who is suing GM because a failed seat belt left his 8-year-old daughter quadriplegic. After a crash, she was “nearly strangled” as “the adult seat belt and shoulder restraint snapped her neck.” She has “no feeling, can't breathe on her own, can hardly move her head.” Dinnigan estimates Amanda’s health care costs to be $500,000 a year. "It's a very big concern right now," said Dinnigan, 47. Dinnigan, who works as an ironworker, has had to construct a “mini-intensive care unit” in his Smithtown, L.I., home to care for Amanda.

The “Kill Old People Cheap Act” as it was called by Representative
Henry Fincher would have severely limited compensation to patients and
families for injury or death caused by a nursing home. As Rep. Fincher
said

The problem with the bill is that there's no guarantees of patient
care. All it does is guarantee that corporations will make money at
the expense of hurting and killing elderly patients. That's not the
right policy in the state of Tennessee.

Advocates from AARP and others are planning on going back to the
drawing board to see if they can’t “find an answer that's going to
provide more quality for patients in nursing homes.”

March 12, 2009

It
must be that time of year again. State legislatures are up and
running,
passing laws that (we hope) will make our states better places to
live. Of course I suppose that depends on what your definition of
“better” is.

And I suppose if you are a nursing home owner in Tennessee you’ve lent
your support ($$$$)
to legislation introduced again (they tried last year and failed)
that would limit legal recourse for nursing home residents should they
be harmed or killed. This year's bill would place an
arbitrary cap on damages that victims could collect, which Tennessee's
AARP and consumer groups vehemently oppose.

But
among other things, the civil justice system is supposed to compensate
victims of grossly inadequate care or gross failures of care. Caps
would benefit nursing homes, but harm victims – yet most of the press
spins this issue as if it is the lawsuits that are preventing the
nursing home industry from providing proper care for the elderly. Last
year, the New York Times wrote an investigative report on the
nursing home industry and found that the corporations often shield
themselves from litigation by setting up a network of dummy companies
preventing victims from receiving compensation.

Personally, if I had to put a loved one in a nursing home I would
want to be sure that the facility was spending most of its time and
attention on the care of its residents – not finding new ways to shield
itself from accountability.

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